-- Sonia M. Sotomayor, "No Lawyer, Bad Lawyer - What's a Judge to Do?," Jon Newman Annual Lecture on Law and Justice, University of Hartford, October 20, 2008. pg 1.
Last time, we considered a hypothetical in which the publisher of one author's book advertises it by attacking a competing author, using his photograph without permission, and lifting a quote out-of- context from one of the target author's prior works, which the ad does not name, and which actually turns out to have been a collaboration between the target and another writer whom the ad campaign does not identify. Prospective buyers looking at the ads have no way of knowing this, and naturally assume that the target author (me) was quoted fairly and accurately. Why did my competition attack me, instead of my former co-author? Why did they use my photograph in their ads instead of his? Because, by following the trade press in the publishing industry, they knew that my competing book was also coming out. Anticipating the upcoming Christmas/Hannukah bookselling season, they hoped to boost their own sales, while hurting mine, by attacking me.
To read Judge John O. Newman's Opinion for the United States Court of Appeals for the Second Circuit in the case of Robert J. Groden v. Random House, The New York Times, and Gerald Posner, you would not know that a case matching this hypothetical fact pattern had actually occurred. You would have no inkling that Groden and Posner had new books competing with each other in the market for books observing the thirtieth anniversary of President Kennedy's assassination. Posner's book was entitled Case Closed; Groden's, The Killing of a President. Judge Newman didn't want you to know about Groden's new book. Although we'll examine it in considerable detail as we journey together, for now take a quick look at his Opinion with the following limited objective: see if you can find any mention there of Bob Groden's book, The Killing of a President, (Viking Penguin: 1993). No? It's no surprise. Indeed, Newman didn't mention it at all. One of several things Newman didn't want the world to know, and thought he could hide because, when he wrote his Opinion in 1995, he was writing for a limited audience of lawyers and judges, and did not contemplate the impending reach of the World Wide Web, was that Mr. Groden was competing directly with Mr. Posner to sell books during the peak gift-giving season of 1993. See, Mr. Posner had emerged quite rapidly, and with great fanfare, as the "anti-conspiracy" star of the mainstream news media, and this was a case that deeply touched the legacy of Judge Newman's beloved mentor and former employer, the late Chief Justice Earl Warren, who had headed the Warren Commission's "investigation" of President Kennedy's assassination, and who had employed Newman as his senior law clerk at the United States Supreme Court.
What Random House had done, without telling its advertising audience what it was doing, was to lift a quote from a 1989 book that credited Harrison E. Livingstone and Groden as co-authors, but they omitted any mention either of Livingstone or the title of the work; neither did they inform readers of their advertising campaign about the dual authorship; nor did they inform readers the Livingstone claimed sole ownership of the copyright to the 1989 book. Groden was quoted as touting a convoluted political conspiracy theory about the Kennedy assassination that was unrelated to the new book he was bringing to market in 1993. And it just so happens that he was neither the author of the quote that Random House pinned on him, nor responsible for that quote appearing in the 1989 book, High Treason. In fact, he had no control over the final published manuscript of that earlier book.
In this blog, I will be devoting considerable early emphasis to the use of the alleged Groden quote in the advertising campaign for a reason: As I continue next week to unveil the record of the litigation pertaining to the quote, it will soon become apparent that the defendants faced a hurdle in their effort to win dismissal of the case, a serious deficiency in the form of their Motion for Summary Judgment that compelled them to risk an eleventh-hour tactic to switch the focus of the case to the substance of the Kennedy assassination controversy, thereby creating an emotional distraction from the key legal issues. I will then begin to show how the federal judges at both the district and circuit court levels helped the defendants to overcome that otherwise fatal defect in their presentation in ways that made a confrontation between Groden and the federal judiciary over the crime of the 20th century virtually unavoidable.
It would be tempting to write that the United States Court of Appeals for the Second Circuit suffered from a mental block in drawing any distinction between Groden and other so-called "conspiracy theorists" targeted by Random House's advertising campaign, but that would not be faithful to the record, and it would be the whole truth. For the Court, knowing that Groden had his own unique issues, distinct from the other targets of the ad campaign, nevertheless refused to reveal, let alone concede, any relevance to his individual standing as a direct competitor vis-a-vis the Posner book.
To the Second Circuit court, Groden occupied the status of an abstraction -- i.e., one of six so-called "conspiracy theorists" depicted in the ad campaign -- not of an individual litigant pressing his own grievance. The Court's seeming inability to transcend the pejorative "conspiracy theorist" stereotype and differentiate Groden from the others depicted in the ad campaign was quite telling. Indeed, the "conspiracy theorist" denomination was a shorthand emblem that the Court appeared unable to shake off. I will expand on this crucial point in future posts.
Both in his original and amended Complaints, Groden had more than adequately alleged the anti-competitive nature and intent of the Random House advertising campaign -- a key issue that could not be resolved without pretrial discovery and/or a trial on the merits. The Second Circuit's omission of any mention of The Killing of a President, and its omission of any allusion to the anti-competitive intent of the ads, were deliberate and instrumental in accomplishing their goals, one of which was to evade an important issue in the case: whether the Random House advertising campaign was a deceptive and misleading attack against the nature and quality of a competitor's product (i.e., Groden's book) to promote their own (Posner's Case Closed). Hiding from their readers the existence of Groden's competing book allowed the Second Circuit court to avoid grappling with Congress's intent in the Lanham Act. It was a clever bit of legerdemain. By denying its audience the contextual setting of two authors competing to sell their new releases to the relevant market, the Court not only betrayed its preference for one side of the dispute, but also threw the permissible legal boundaries of negative comparative advertising into uncertainty. That omission, however, was merely one part of a tapestry of judicial bias, fraud, multiple misrepresentations, and deceit; which form the Second Circuit's tragic legacy to the law profession and history. For what the Court was actually trying to accomplish with their Opinion in the Groden case was to conceal their true aims: to protect the reputation of Earl Warren; to protect a federal district court judge who had seriously faltered in his responsibilities to evaluate all the evidence; and, more generally, to protect the reputation of the federal judiciary, by preventing the Random House advertising campaign from becoming the focal point of a public trial to determine whether or not John F. Kennedy was assassinated by more than one man. Barring the courthouse door to Groden and his attorney would foreclose any potential threat that they might prove to a jury in a federal court the existence of a conspiracy in the assassination. Fear and dread of the mere possibility this might ensue were Groden's lawsuit to be allowed seem to have weighed heavily in the Second Circuit Court's Opinion.
Concealment of the context in which Groden v. Random House, Inc., et al. arose affords us only an introductory glimpse, however, at how Jon Newman and his colleagues on the Second Circuit court evaded their dialectical burden and employed highly questionable strategic maneuvering in attempting to justify their decision of the case.
Before fully dissecting the malice and malfeasance of the Second Circuit, it will be useful to reveal the origin of the Random House advertising campaign so as to leave no doubt as to its wrongful and injurious intent. New evidence has just emerged in this regard. It is startling, and I shall cover it in my next post -- when we return from the President's Day weekend break. Coming up next: "The Confession of Sir Harold Evans," former publisher of Random House, and the man who now claims responsibility for creating the "Guilty of Misleading the American Public" advertising campaign.
